July 28, 2004
This Use is Fair Use
by Nick Morgan
Regarding this amusing parody of the song "This Land is Your Land," and the unjust, if legally warranted lawsuit against it, I think Professor Volokh gets the fair use analysis completely wrong:
The copyright owners have a pretty good case. If JibJab were making fun of the song, then the cartoon would likely be a fair use. But JibJab seems to be just using the song to make fun of Bush and Kerry, rather than making much of a comment about the song itself -- that makes the fair use defense much weaker. (See Campbell v. Acuff-Rose (1994), the "Oh, Pretty Woman" case; see also Dr. Seuss Enterprises v. Penguin Books USA, the Seuss-rhymes-about-O.J. case from the Ninth Circuit several years ago.) I realize one could argue that JibJab is partly commenting on the song, and, even if courts reject that argument, JibJab's fair use case isn't a clear loser. But on balance, the copyright owner's s argument is likely stronger than the defendant's.
JibJab's work does far more than "partly comment on the song." It lampoons the idealistic notions of American unity in the original song, throws in a comic, but scolding, reminder that "this land" isn't really the land of Native American's anymore, and contrasts the silly geographical themes of the song with our childishly divisive political climate.
Does Volokh expect JibJab's work to convey scholarly commentary? Perhaps a refresher on Campbell v. Acuff-Rose is in order. Defendants, 2 Live Crew, parodied "Oh, Pretty Woman" with these lyrics (excerpted):
Big hairy woman you need to shave that stuff
Big hairy woman you know I bet it's tough
Big hairy woman all that hair it ain't legit
Cause you look like "Cousin It"
Big hairy woman
Bald headed woman girl your hair won't grow
Bald headed woman you got a teeny weeny afro
Bald headed woman you know your hair could look nice
Bald headed woman first you got to roll it with rice
Bald headed woman here, let me get this hunk of biz for ya
Ya know what I'm saying you look better than rice a roni
Oh bald headed woman
Big hairy woman come on in
And don't forget your bald headed friend Hey pretty woman let the boys Jump in
Two timin' woman girl you know you ain't right
Two timin' woman you's out with my boy last night
Two timin' woman that takes a load off my mind
Two timin' woman now I know the baby ain't mine
Oh, two timin' woman Oh pretty woman
Is that commentary? Commentary enough, said the Supreme Court:
While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works
This passage ought to make you laugh. If the Supreme Court is willing to parody itself in order to find critical commentary in this, a song written by 2 Live Crew, surely JibJab's work is on much safer ground. Go see for yourself.
July 28, 2004 10:27 PM
"America, the Beautiful" (is that the correct title?) is a song that I learned and enjoyed as a child. In fact, I still enjoy the late Ray Charles' rendition. But what if in a video (perhaps this has even been done) Ray's rendition had as background scenes that negate much of the lyrics? Assuming there remains copyright protection for this song, could the owner challenge a fair use claim?
When "This land is your land" is sung today, how many listeners think of or understand what led to its being written and how it was then understood? As with many writings (including the Constitution), times can change their meanings to new readers applying their experiences.
The lyrics to "This land is your land" cannot be separated from the video scenes in determining fair use. Combined the lyrics and the scenes convey messages of interest contrasting competing political messages - and in a fair and balanced manner politically. The lyrics can still be appreciated when heard separate from the parody/satire scenes in the video. The song will survive.
Wouldn't it be amusing if, as a result of JibJab's cartoon, sales of the "original" Guthrie version increased?
I should think that TRO would then not have much of a case...
Whether the sales of the original go up or down is irrelevent to the parody inquiry. The parody can increase sales for the original or be "lethal" for it, either way it doesn't matter (unless the parody actually acts to replace the original, in which case is it not truely a parody, but is an infringing copy). Got all that?
You make a good argument, but I think that if you buy the parody-satire distinction at all (which I don't), you have to conclude that this is really on the satire side. They're using the song the way the Capitol Steps do--as a handy recognizable vehicle for social satire. I don't dispute that the additional parodic elements you point to are also present. In fact, this kind of thing works best when there is something particular about the vehicle song used that makes it ironic or otherwise appropo. But I'd have to agree with Eugene that ultimately that element is pretty attenuated and secondary here. To see why, compare Jibjab's song with a true parody of Guthrie: the one I learned on the schoolyard that goes like this:
This land is my land, this land ain't your land
I've got a shotgun, and you don't got one
If you don't get off, I'll blow your head off
This land is private property.
I'm curious--have you read the Dr. Seuss opinion? If so, did you buy the argument the court rejected there as to why the book actually was a parody of Dr. Seuss?
If you're interested, here's a link to an article I wrote with Judge Kozinski arguing that in these cases, the copyright holder should not be able to enjoin the derivative work, but should be entitled to a share of the profits regardless of whether it is satire or parody.